South Carolina Regulations - Procurement Services
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CHAPTER 19.
STATE BUDGET AND CONTROL BOARD
ARTICLE 1.
OFFICE OF EXECUTIVE DIRECTOR
19-445. Consolidated Procurement Code.
(Statutory Authority: 1976 Code Section 11-35-10 et seq.)
19-445.2000. State Procurement Regulations.
19-445.2005. Internal Procurement Procedures; Procurement Records.
19-445.2010. Disclosure of Procurement Information.
19-445.2015. Ratification.
19-445.2020. Certification.
19-445.2022. Temporary Suspension of Authority; Audit.
19-445.2025. Authority to Contract for Certain Services; Definitions.
19-445.2030. Competitive Sealed Bidding--The Invitation for Bids.
19-445.2035. [Repealed].
19-445.2040. The Official State Government Publication.
19-445.2042. Pre-Bid Conferences.
19-445.2045. Receipt and Safeguarding of Bids.
19-445.2050. Bid Opening.
19-445.2055. Bid Acceptance and Bid Evaluation.
19-445.2060. Telegraphic Bids.
19-445.2065. Rejection of Bids.
19-445.2070. Rejection of Individual Bids.
19-445.2075. All or None Qualifications.
19-445.2077. Bid Samples and Descriptive Literature.
19-445.2080. Clarifications with Bidders.
19-445.2085. Correction or Withdrawal of Bids; Cancellation of Awards.
19-445.2090. Award.
19-445.2095. Competitive Sealed Proposals.
19-445.2097. Rejection of Proposals.
19-445.2100. Small Purchases and Other Simplified Purchasing Procedures.
19-445.2105. Sole Source Procurements.
19-445.2110. Emergency Procurements.
19-445.2115. Information Technology Procurements.
19-445.2120. Cost or Pricing Data.
19-445.2121. [Repealed].
19-445.2125. Responsibility of Bidders and Offerors.
19-445.2130. Prequalification of Supplies and Suppliers.
19-445.2132. Prequalification for a Single Solicitation.
19-445.2135. Conditions for Use of Multi-term Contracts.
19-445.2137. Food Service Contracts.
19-445.2140. Specifications.
19-445.2145. Construction, Architect Engineer, Construction Management, and Land Surveying Services.
19-445.2150. Surplus Property Management.
19-445.2152. Leases, Lease/Payment, Installment Purchase, and Rental of Personal Property.
19-445.2155. Intergovernmental Relations.
19-445.2160. Assistance to Minority Businesses.
19-445.2165. Gifts
19-445.2180. Assignment, Novation, and Change of Name.
19-445.2200. Administrative Review Protective Orders.
19-445.3000. School District Procurement Codes; Model.
19-445.2000. State Procurement Regulations.
A. General.
These Regulations issued by the South Carolina Budget and Control Board, hereafter referred to as the Board, establish policies, procedures, and guidelines relating to the procurement, management, control, and disposal of supplies, services, information technology, and construction, as applicable, under the authority of the South Carolina Consolidated Procurement Code, as amended. These Regulations are designed to achieve maximum practicable uniformity in purchasing throughout state government. Hence, implementation of the Procurement Code by and within governmental bodies, as defined in Section 11-35-310(18) of the Procurement Code, shall be consistent with these Regulations. Nothing contained in these Rules and Regulations shall be construed to waive any rights, remedies or defenses the State might have under any laws of the State of South Carolina.
B. Organizational Authority.
(1) The Chief Procurement Officers acting on behalf of the Board shall have the responsibility to audit and monitor the implementation of these Regulations and requirements of the South Carolina Consolidated Procurement Code. In accordance with Section 11-35-510 of the Code, all rights, powers, duties and authority relating to the procurement of supplies, services, and information technology and to the management, control, warehousing, sale and disposal of supplies, construction, information technology, and services now vested in or exercised by any governmental body under the provisions of law relating thereto, and regardless of source funding, are hereby vested in the appropriate chief procurement officers. The chief procurement officers shall be responsible for developing such organizational structure as necessary to implement the provisions of the Procurement Code and these Regulations.
(2) Materials Management Office: The Materials Management Officer is specifically responsible for:
(a) developing a system of training and certification for procurement officers of governmental bodies in accordance with Section 11-35-1030;
(b) recommending differential dollar limits for direct procurements on the basis of but not limited to the following:
(1) procurement expertise,
(2) commodity,
(3) service,
(4) dollar;
(c) performing procurement audits of governmental bodies in accordance with Sections 11-35-70 and 11-35-1230 of the Procurement Code.
(d) overseeing acquisitions for the State by the State Procurement Office.
(e) coordinating with the Information Technology Management Office in accordance with Section 11-35-820;
(f) overseeing the acquisition of procurements by the State Engineer in accordance with Section 11-35-830.
(3) Office of Information Technology Management: The Office of Information Technology Management shall be responsible for all procurements involving information technology pursuant to Section 11-35-820 of the Procurement Code.
(4) Office of State Engineer: The Office of State Engineer under the direction and oversight of the Materials Management Officer shall be responsible for all procurements involving construction, architectural and engineering, construction management, and land surveying services pursuant to Section 11-35-830 of the Procurement Code.
C. Definitions
(1) “Head of purchasing agency” means the agency head, that is, the individual charged with ultimate responsibility for the administration and operations of the governmental body. Whenever the South Carolina Consolidated Procurement Code or these Regulations authorize either the chief procurement officer or the head of the purchasing agency to act, the head of the purchasing agency is authorized to act only within the limits of the governmental body’s authority under Section 11-35-1550(1) or its certification as granted by Board under Section 11-35-1210(1), except with regard to acts taken pursuant to Section 11-35-1560 and 11-35-1570.
(2) “Procuring Agency” means “purchasing agency” as defined in Section 11-35-310.
D. Duty to Report Violations
All governmental bodies shall comply in good faith with all applicable requirements of the consolidated procurement code and these procurement regulations. When any information or allegations concerning improper or illegal conduct regarding a procurement governed by the consolidated procurement code comes to the attention of any employee of the State, immediate notice of the relevant facts shall be transmitted to the appropriate chief procurement officer.
E. Effective Date.
Except as otherwise provided herein, these regulations are effective upon publication in the State Register. The following additions or revisions to this regulation 19-445 apply only to solicitations issued after the first Monday in September following the legislative session during which they are approved: Sections 2010, -.2015, -.2050, -.2095, -.2097, -.2105, -.2120, -.2180.
19-445.2005. Internal Procurement Procedures; Procurement Records.
A. Procedures Manual.
All governmental bodies shall develop and maintain an internal procurement procedures manual and forward a copy, and any revisions, of such to the Materials Management Officer. Upon receipt of the respective governmental body’s internal procurement procedures manual, the Materials Management Office shall be responsible for the following review:
(1) Determine that written internal operations procedures as submitted (a) are consistent with the South Carolina Consolidated Procurement Code and Regulations, (b) are consistent with any policies or procedures published by the chief procurement officers for their respective areas of responsibility, and (c) establish a clear means by which vendors can identify the governmental body’s procurement officers and the limits of their authority.
(2) Notify the governmental body of its findings in writing.
B. Procurement Records.
Each governmental body must maintain procurement files sufficient to satisfy the requirements of external audit.
19-445.2010. Disclosure of Procurement Information.
Text of regulation applicable to solicitations issued after the first Monday in September 2007
A. If requested in writing by an actual offeror prior to final award, the responsible procurement officer shall, within ten days of the receipt of any such request, make documents directly related to the procurement activity not otherwise exempt from disclosure available for inspection at an office of the responsible procurement officer.
B. Prior to the issuance of an award or notification of intent to award, whichever is earlier, state personnel involved in an acquisition shall forward or refer all requests for information regarding the procurement to the responsible procurement officer. The procurement officer will respond to the request.
C. Prior to the issuance of an award or notification of intent to award, whichever is earlier, state personnel involved in an acquisition shall not engage in conduct that knowingly furnishes source selection information to anyone other than the responsible procurement officer, unless otherwise authorized in writing by the responsible procurement officer. “Source selection information” means any of the following information that is related to or involved in the evaluation of an offer (e.g., bid or proposal) to enter into a procurement contract, if that information has not been previously made available to the public or disclosed publicly: (1) Proposed costs or prices submitted in response to an agency solicitation, or lists of those proposed costs or prices, (2) source selection plans, (3) technical evaluation plans, (4) technical evaluations of proposals, (5) cost or price evaluations of proposals, (6) information regarding which proposals are determined to be reasonably susceptible of being selected for award, (7) rankings of responses, proposals, or competitors, (8) reports, evaluations of source selection committees or evaluations panels, (9) other information based on a case-by-case determination by the procurement officer that its disclosure would jeopardize the integrity or successful completion of the procurement to which the information relates.
D. Throughout the competitive sealed proposal process, state and non-state personnel with access to proposal information shall not disclose either the number of offerors or their identity, except as otherwise required by law.
E. Prior to the issuance of an award or notification of intent to award, whichever is earlier, the procurement officer shall not release a proposal to a person without first obtaining from that person a written agreement, in a form approved by the responsible chief procurement officer, regarding restrictions on the use and disclosure of proposals. Such agreements are binding and enforceable.
F. The release of a proposal to non-state personnel for evaluation does not constitute public disclosure or a release of information for purposes of the Freedom of Information Act.
G. Except as prohibited by law, and subject to section 2200, state contracts may include clauses restricting the state’s release of documents and information received from a contractor if those documents are exempt from disclosure under applicable law.
19-445.2015. Ratification.
Text of regulation applicable to solicitations issued on or before the first Monday in September 2007
A. Unauthorized Procurements.
The ratification of an act obligating the State in a contract by any person without the requisite authority to do so by an appointment or delegation under the procurement Code rests with the Office of General Services. It is prohibited for a procurement officer to ratify such acts.
(1) Ratification by a Governmental Body. The Office of General Services hereby delegates authority to ratify such acts to the head of the governmental body or his designee above the level of the procurement officer responsible for the person committing the act when the value of the contract is within the dollar limits designated by the Budget and Control Board for that governmental body.
(2) Ratification by the Office of General Services. The Director of the Office of General Services may delegate authority to ratify such acts other than those specified in Item 1 above to the Chief Procurement Officers in such amounts as the Director may determine.
(3) Corrective Action and Liability. In either case referred to in Items 1 and 2 above, the head of the governmental body or his designee as authorized in writing above the level of the procurement officer, shall prepare a written determination as to the facts and circumstances surrounding the act, what corrective action is being taken to prevent reoccurrence, action taken against the individual committing the act, and documentation that the price paid is fair and reasonable.
Text of regulation applicable to solicitations issued after the first Monday in September 2007
A. Upon finding after award that a State employee has made an unauthorized award of a contract or that a contract award is otherwise in violation of law, the appropriate official may ratify or affirm the contract or terminate it in accordance with this section. The contract may be terminated and reasonable termination costs, if any, may be awarded as provided in this section. The contract may be ratified and affirmed only if it is in the best interests of the State. The decision required by this subsection A may be made by the chief procurement officer, the head of a purchasing agency, or a designee of either officer, above the level of the person responsible for the person committing the act. If the value of the contract exceeds one hundred thousand dollars, the chief procurement officer must concur in the written determination before any action is taken on the decision.
B. All decisions to ratify or terminate a contract shall be supported by a written determination of appropriateness. In addition, the appropriate official shall prepare a written determination as to the facts and circumstances surrounding the act, what corrective action is being taken to prevent recurrence, and the action taken against the individual committing the act. Any governmental body shall submit quarterly a record listing all decisions required by subsection A to the chief procurement officers. A copy of the record shall be submitted to the board on an annual basis and shall be available for public inspection.
C. Except as provided in subsection D, if a contract is terminated pursuant to subsection A, the State shall, where possible and by agreement with the supplier, return the supplies delivered for a refund at no cost to the State or at a minimal restocking charge. If a termination claim is made, settlement shall be made in accordance with the contract. If there are no applicable termination provisions in the contract, settlement shall be made on the basis of actual costs directly or indirectly allocable to the contract through the time of termination. Such costs shall be established in accordance with generally accepted accounting principles. Profit shall be proportionate only to the performance completed up to the time of termination and shall be based on projected gain or loss on the contract as though performance were completed. Anticipated profits are not allowed.
D. Upon finding after award that an award is in violation of law and that the recipient of the contract acted fraudulently or in bad faith, the appropriate chief procurement officer shall declare the contract null and void unless it is determined in writing that there is a continuing need for the supplies, services, information technology, or construction under the contract and either (i) there is no time to re-award the contract under emergency procedures or otherwise; or (ii) the contract is being performed for less than it could be otherwise performed. If a contract is voided, the State shall endeavor to return those supplies delivered under the contract that have not been used or distributed. No further payments shall be made under the contract and the State is entitled to recover the greater of (i) the difference between payments made under the contract and the contractor’s actual costs up until the contract was voided, or (ii) the difference between payments under the contract and the value to the State of the supplies, services, information technology, or construction it obtained under the contract. The State may in addition claim damages under any applicable legal theory.
E. Regardless of its ratification and affirmation of a contract, the State shall be entitled to any damages it can prove under any theory including but not limited to contract and tort.
19-445.2020. Certification.
A. Review Procedures.
(1) Unless otherwise authorized by statute, any governmental body that desires to make direct agency procurements in excess of $50,000.00, shall contact the Materials Management Officer in writing to request certification in any area of procurement, including the following four areas:
(a) Supplies and services;
(b) Consultant services;
(c) Construction and related professional services;
(d) Information technology.
(2) The Materials Management Officer shall review and report on the particular governmental body’s entire internal procurement operation to include, but not be limited to the following:
(a) Adherence to provisions of the South Carolina Consolidated Procurement Code and these Regulations;
(b) Procurement staff and training;
(c) Adequate audit trails and purchase order register;
(d) Evidences of competition;
(e) Small purchase provisions and purchase order confirmation;
(f) Emergency and sole source procurements;
(g) Source selections;
(h) File documentation of procurements;
(i) Decisions and determinations made pursuant to section 2015;
(j) Adherence to any mandatory policies, procedures, or guidelines established by the appropriate chief procurement officers;
(k) Adequacy of written determinations required by the South Carolina Consolidated Procurement Code and these Regulations;
(l) Contract administration;
(m) Adequacy of the governmental body’s system of internal controls in order to ensure compliance with applicable requirements.
(3) The report required by item (2) shall be submitted to the Board, along with the recommendation of the Materials Management Officer. Upon favorable review by the Materials Management Officer and approval by the Board, the particular governmental body may be certified and assigned a dollar limit below which the certified governmental body may make direct agency procurements. Such certification shall be in writing and specify:
(a) The name of the governmental body;
(b) Any conditions, limits or restrictions on the exercise of the certification;
(c) The duration of the certification; and
(d) The procurement areas in which the governmental body is certified.
(4) Using the criteria listed in item A(2) above, the office of each chief procurement officer shall be reviewed at least ever five years by the audit team of the Materials Management Office. The results of the audit shall be provided to the appropriate chief procurement officer and the designated board officer.
B. Limitations.
(1) Such certification as prescribed in subsection A shall be subject to any term contracts established by the chief procurement officers which requires mandatory procurement by all governmental bodies.
(2) Such certification as prescribed in subsection A may be subject to maintaining an adequate staff of qualified or certified procurement officers.
19-445.2022. Temporary Suspension of Authority; Audit.
A. Suspension of Authority.
Within his area of authority, the appropriate chief procurement officer may temporarily suspend a governmental body’s power to conduct all, any type of, or any value of procurements if the chief procurement officer concludes that the governmental body either (1) lacks adequate internal controls to ensure compliance with the procurement laws, (2) lacks qualified or adequate staff, or (3) has otherwise acted in a manner that, in the opinion of the chief procurement officer, warrants a temporary loss of authority. The chief procurement officer may make continued suspension contingent upon corrective action, e.g., retain additional staff, training, revised internal controls. The suspension is effective upon delivery of written notice to the head of the purchasing agency. The written notice shall state the duration of the temporary suspension, which may not extend beyond the next regularly scheduled audit to be conducted pursuant to Section 11-35-1320. A chief procurement officer may not limit direct agency procurements below $25,000.00. Before issuing a suspension pursuant to this paragraph, a chief procurement officer shall consult with the other chief procurement officers.
B. Audit.
In order to monitor the implementation of the procurement process, the appropriate chief procurement officer has the authority to audit any governmental body regarding one or more procurement activities.
19-445.2025. Authority to Contract for Certain Services; Definitions.
A. Consultant Services.
(1) For the purposes of these Regulations, consultant services shall be defined as follows: An individual, partnership, corporation or any other legally established organization performing consulting services for or providing consulting advice to the State of South Carolina, or any governmental body thereof, over whom the State or governmental body has the right of control as to the result to be accomplished but not as to the details and means by which that result is to be accomplished.
(2) Services which fall within this definition shall be procured in accordance with the Code and these Regulations.
B. Employee Services.
(1) For the purposes of these Regulations, employee services shall be defined as follows: An individual performing services directly for the State of South Carolina, or any governmental body thereof, over whom the State or governmental body has the right of control not only as to the result to be accomplished by the work but also as to the details and means by which that work is to be accomplished.
(2) Services which fall within this definition shall be procured in accordance with State personnel policies and procedures.
C. Employment Services.
(1) For the purposes of these Regulations, employment services shall be defined as follows: An individual performing services indirectly for the State of South Carolina, or any governmental body thereof, whose services are obtained through a private employment agency. The employee employer relationship exists between the private employment agency and its employee. The State, or any governmental body, will contract with the private employment agency for the services of its employees.
(2) Services which fall within this definition shall be procured in accordance with the Code and these Regulations.
D. Legal Services.
Prior to the award of any state contract for the services of attorneys, approval for such services shall be obtained by the governmental body from the State Attorney General.
E. Auditing Services.
Prior to the award of any state contract for auditing or accounting services, approval for such services shall be obtained by the governmental body from the State Auditor.
19-445.2030. Competitive Sealed Bidding--The Invitation for Bids.
The invitation for bids shall be used to initiate a competitive sealed bid procurement and shall include the following, as applicable:
(1) instructions and information to bidders concerning the bid submission requirements, including the time and date set for receipt of bids, the individual to whom the bid is to be submitted, the address of the office to which bids are to be delivered, the maximum time for bid acceptance by the State, and any other special information;
(2) the purchase description, evaluation factors, delivery or performance schedule, and such inspection and acceptance requirements as are not included in the purchase description;
(3) the contract terms and conditions, including warranty and bonding or other security requirements, as applicable; and
(4) Instructions to bidders on how to visibly mark information which they consider to be exempt from public disclosure.
(5) Bidding time will be set to provide bidders a reasonable time to prepare their bids. The date of opening may not be less than seven (7) days after notice of the solicitation is provided as required by Section 11-35-1520(3), unless a shorter time is deemed necessary for a particular procurement as determined in writing by the Chief Procurement Officer or the head of the purchasing agency or his designee.
19-445.2035. Repealed in State Register Volume 23, Issue No. 5, eff May 28, 1999.
19-445.2040. The Official State Government Publication.
A. Specifications of Publication.
The name of the official state government publication shall be known as the “South Carolina Business Opportunities.” It shall be published by the Materials Management Office at least weekly. The purpose is to provide a listing of proposed procurements of construction, information technology, supplies, services and other procurement information of interest to the business community. Except as otherwise provided by law, the publication will be available to all interested parties by subscription and distributed by mail or electronic media. Contents shall be limited to inclusion of proposed procurements required by regulations and such other business information as approved by the Materials Management Officer. Publication of proposed procurements of a classified nature or emergencies may be excluded from publication.
B. Availability in Public Libraries.
Each publication of the “South Carolina Business Opportunities” shall be distributed to public libraries within the State.
19-445.2042. Pre-Bid Conferences.
Pre-bid conferences may be conducted. The conference should be held long enough after the Invitation for Bids has been issued to allow bidders to become familiar with it, but sufficiently before bid opening to allow consideration of the conference results in preparing their bids. Nothing stated at the pre-bid conference shall change the Invitation for Bids unless a change is made by written amendment.
19-445.2045. Receipt and Safeguarding of Bids.
A. Procedures Prior to Bid Opening.
All bids (including modifications) received prior to the time of opening shall be kept secure and, except as provided in subsection B below, unopened. Necessary precautions shall be taken to insure the security of the bid. Prior to bid opening, information concerning the identity and number of bids received shall be made available only to the state employees, and then only on a “need to know” basis. When bid samples are submitted, they shall be handled with sufficient care to prevent disclosure of characteristics before bid opening.
B. Unidentified Bids.
Unidentified bids may be opened solely for the purpose of identification, and then only by an official specifically designated for this purpose by the Chief Procurement Officer, the procurement officer of the governmental body, or a designee of either officer. If a sealed bid is opened by mistake, the person who opens the bid will immediately write his signature and position on the envelope and deliver it to the aforesaid official. This official shall immediately write on the envelope an explanation of the opening, the date and time opened, the invitation for bids’ number, and his signature, and then shall immediately reseal the envelope.
19-445.2050. Bid Opening.
Text of regulation applicable to solicitations issued on or before the first Monday in September 2007
A. Procedures.
The procurement officer of the governmental body or his designee shall decide when the time set for bid opening has arrived, and shall so declare to those present. He shall then personally and publicly open all bids received prior to that time, and read aloud so much thereof as is practicable, including prices, to those persons present and have the bids recorded. The amount of each bid and such other relevant information, together with the name of each bidder, shall be tabulated. The tabulation shall be open to public inspection.
B. If it becomes necessary to postpone a bid opening, the procurement officer shall issue the appropriate amendments to the solicitation postponing or rescheduling the bid opening. When the procuring agency is closed due to force majeure, bid opening will be postponed to the same time on the next official business day.
C. Disclosure of Bid Information. Only the information disclosed by the procurement officer of the governmental body or his designee at bid opening is considered to be public information under the Freedom of Information Act, Chapter 4 of Title 30, until the notice of intent to award is issued.
Text of regulation applicable to solicitations issued after the first Monday in September 2007
A. Procedures.
The procurement officer of the governmental body or his designee shall decide when the time set for bid opening has arrived, and shall so declare to those present. In the presence of one or more state witnesses, he shall then personally and publicly open all bids received prior to that time, and read aloud so much thereof as is practicable, including prices, to those persons present and have the bids recorded. The amount of each bid and such other relevant information, together with the name of each bidder, shall be tabulated and certified in writing as true an accurate by both the person opening the bids and the witness. The tabulation shall be open to public inspection.
B. If it becomes necessary to postpone a bid opening, the procurement officer shall issue the appropriate amendments to the solicitation postponing or rescheduling the bid opening. When the purchasing agency is closed due to force majeure, bid opening will be postponed to the same time on the next official business day.
C. Disclosure of Bid Information.
Only the information disclosed by the procurement officer of the governmental body or his designee at bid opening is considered to be public information under the Freedom of Information Act, Chapter 4 of Title 30, until after the issuance of an award or notification of intent to award, whichever is earlier.
19-445.2055. Bid Acceptance and Bid Evaluation.
When necessary for the best interest of the State, bid criteria to determine acceptability may include inspection, testing, quality, workmanship, delivery and suitability for a particular purpose. Those criteria that will affect the bid price and be considered in evaluation for award shall be measurable costs to include, but not be limited to, discounts, transportation costs, total or life cycle costs.
19-445.2060. Telegraphic Bids.
The Invitation for Bids may state that electronic, telegraphic, and mailgram bids will be considered whenever they are received in hand at the designated office by the time and date set for receipt of bids. Such electronic, telegraphic, or mailgram bids shall contain specific reference to the Invitation for Bids; the items, quantities, and prices for which the bid is submitted; the time and place of delivery; and a statement that the bidder agrees to all the terms; conditions, and provisions of the Invitation for Bids.
19-445.2065. Rejection of Bids.
A. Unless there is a compelling reason to reject one or more bids, award will be made to the lowest responsible and responsive bidder. Every effort shall be made to anticipate changes in a requirement prior to the date of opening and to notify all prospective bidders of any resulting modification or cancellation, thereby permitting bidders to change their bids and preventing the unnecessary exposure of bid prices. As a general rule after opening, an invitation for bids should not be canceled and readvertised due solely to increased quantities of the items being procured; award should be made on the initial invitation for bids and the additional quantity required should be treated as a new procurement.
B. Cancellation of Bids Prior to Award.
(1) When it is determined prior to the issuance of an award or notification of intent to award, whichever is earlier, but after opening, that the requirements relating to the availability and identification of specifications have not been met, the invitation for bids shall be cancelled. Invitations for bids may be cancelled after opening, but prior to award, when such action is consistent with subsection A above and the procurement officer determines in writing that:
(a) inadequate or ambiguous specifications were cited in the invitation;
(b) specifications have been revised;
(c) the supplies, services, information technology, or construction being procured are no longer required;
(d) the invitation did not provide for consideration of all factors of cost to the State, such as cost of transporting state furnished property to bidders’ plants;
(e) bids received indicate that the needs of the State can be satisfied by a less expensive article differing from that on which the bids were invited;
(f) all otherwise acceptable bids received are at unreasonable prices;
(g) the bids were not independently arrived at in open competition, were collusive, or were submitted in bad faith; or
(h) for other reasons, cancellation is clearly in the best interest of the State.
(2) Determinations to cancel invitations for bids shall state the reasons therefor.
C. Extension of Bid Acceptance Period.
Should administrative difficulties be encountered after bid opening which may delay award beyond bidders’ acceptance periods, the several lowest bidders should be requested, before expiration of their bids, to extend the bid acceptance period (with consent of sureties, if any) in order to avoid the need for re-advertisement.
D. Return of Bids
If an invitation for bids is canceled, bids shall be returned to the bidders.
19-445.2070. Rejection of Individual Bids.
A. General Application.
Any bid which fails to conform to the essential requirements of the invitation for bids shall be rejected.
B. Alternate Bids.
Any bid which does not conform to the specifications contained or referenced in the invitation for bids may be rejected unless the invitation authorized the submission of alternate bids and the supplies offered as alternates meet the requirements specified in the invitation.
C. Any bid which fails to conform to the delivery schedule, to permissible alternates thereto stated in the invitation for bids, or to other material requirements of the solicitation may be rejected as nonresponsive.
D. Modification of Requirements by Bidder.
(1) Ordinarily a bid should be rejected when the bidder attempts to impose conditions which would modify requirements of the invitation for bids or limit his liability to the State, since to allow the bidder to impose such conditions would be prejudicial to other bidders. For example, bids should be rejected in which the bidder:
(a) attempts to protect himself against future changes in conditions, such as increased costs, if total possible cost to the State cannot be determined;
(b) fails to state a price and in lieu thereof states that price shall be “price in effect at time of delivery;”
(c) states a price but qualified such price as being subject to “price in effect at time of delivery;”
(d) when not authorized by the invitation, conditions or qualifies his bid by stipulating that his bid is to be considered only if, prior to date of award, bidder receives (or does not receive) award under a separate procurement;
(e) requires the State to determine that the bidder’s product meets state specifications; or
(f) limits the rights of the State under any contract clause.
(2) Bidders may be requested to delete objectionable conditions from their bid provided that these conditions do not go to the substance, as distinguished from the form, of the bid or work an injustice on other bidders. Bidder should be permitted the opportunity to furnish other information called for by the Invitation for Bids and not supplied due to oversight, so long as it does not affect responsiveness.
E. Price Unreasonableness.
Any bid may be rejected if the procurement officer determines in writing that it is unreasonable as to price.
F. Bid Security Requirement.
When a bid security is required and a bidder fails to furnish it in accordance with the requirements of the invitation for bids, the bid shall be rejected.
G. Exceptions to Rejection Procedures.
Any bid received after the procurement officer of the governmental body or his designee has declared that the time set for bid opening has arrived, shall be rejected unless the bid had been delivered to the location specified in the solicitation or the governmental bodies’ mail room which services that location prior to the bid opening.
19-445.2075. All or None Qualifications.
Unless the invitation for bids so provides, a bid is not rendered nonresponsive by the fact that the bidder specifies that award will be accepted only on all, or a specified group, of the items included in the invitation for bids. However, bidders shall not be permitted to withdraw or modify “all or none” qualifications after bid opening since such qualification is substantive and affects the rights of the other bidders.
19-445.2077. Bid Samples and Descriptive Literature.
A. “Descriptive literature” means information available in the ordinary course of business which shows the characteristics, construction, or operation of an item which enables the State to consider whether the item meets its needs.
B. “Bid sample” means a sample to be furnished by a bidder to show the characteristics of the item offered in the bid.
C. Bid samples or descriptive literature may be required when it is necessary to evaluate required characteristics of the items bid.
D. The Invitation for Bids shall state that bid samples or descriptive literature should not be submitted unless expressly requested and that, regardless of any attempt by a bidder to condition the bid, unsolicited bid samples or descriptive literature which are submitted at the bidder’s risk will not be examined or tested, and will not be deemed to vary any of the provisions of the Invitation for Bids.
19-445.2080. Clarifications with Bidders.
Apparent responsive bidder, as used in the source selection process, means a person who has submitted a bid or offer which obviously conforms in all material aspects to the solicitation. A procurement officer’s decision regarding whether a bid is apparently responsive is final unless protested.
19-445.2085. Correction or Withdrawal of Bids; Cancellation of Awards.
A. General Procedure.
A bidder or offeror must submit in writing a request to either correct or withdraw a bid to the procurement officer. Each written request must document the fact that the bidder’s or offeror’s mistake is clearly an error that will cause him substantial loss. All decisions to permit the correction or withdrawal of bids shall be supported by a written determination of appropriateness made by the chief procurement officers or head of a purchasing agency, or the designee of either.
B. Correction Creates Low Bid.
To maintain the integrity of the competitive sealed bidding system, a bidder shall not be permitted to correct a bid mistake after bid opening that would cause such bidder to have the low bid unless the mistake is clearly evident from examining the bid document; for example, extension of unit prices or errors in addition.
C. Cancellation Of Award Prior To Performance.
After an award or notification of intent to award, whichever is earlier, has been issued but before performance has begun, the award or contract may be canceled and either re-awarded or a new solicitation issued or the existing solicitation canceled, if the Chief Procurement Officer determines in writing that:
(1) Inadequate or ambiguous specifications were cited in the invitation;
(2) Specifications have been revised;
(3) The supplies, services, information technology, or construction being procured are no longer required;
(4) The invitation did not provide for consideration of all factors of cost to the State, such as cost of transporting state furnished property to bidders’ plants;
(5) Bids received indicate that the needs of the State can be satisfied by a less expensive article differing from that on which the bids were invited;
(6) The bids were not independently arrived at in open competition, were collusive, or were submitted in bad faith;
(7) Administrative error of the purchasing agency discovered prior to performance, or
(8) For other reasons, cancellation is clearly in the best interest of the State.
19-445.2090. Award.
A. Application.
The contract shall be awarded to the lowest responsible and responsive bidder(s) whose bid meets the requirements and criteria set forth in the invitation for bids.
B. The procurement officer shall issue the notice of intent to award or award on the date specified in the solicitation, unless the procurement officer determines, and gives notice, that a longer review time is necessary. The procurement officer shall give notice of a time extension to each bidder by posting it at the location identified in the solicitation.
19-445.2095. Competitive Sealed Proposals.
Text of regulation applicable to solicitations issued on or before the first Monday in September 2007
A. Request for Proposals.
The provisions of Regulation 19-445.2040 shall apply to implement the requirements of Section 11-35-1530 (2), Public Notice.
B. Receipt and Safeguarding of Proposals.
The provisions of Regulation 19-445.2045 shall apply for the receipt and safeguarding of proposals.
C. Receipt of Proposals.
For the purposes of implementing Section 11-35-1530 (3), Receipt of Proposals, the following requirements shall be followed:
(1) Proposals shall be opened publicly by the procurement officer of the governmental body or his designee in the presence of one or more witnesses at the time and place designated in the request for proposals. A tabulation of those offering a proposal shall be made public record. Contents of competing offers shall not be disclosed during the process of negotiation. All offerors must visibly mark as “confidential” each part of their proposal which they consider to be proprietary information.
D. Evaluation of Proposals.
The provisions of Regulation 19-445.2055 shall apply to implement the requirements of Section 11-35-1530(5), Evaluation Factors.
E. Minor Informalities and Irregularities in Proposals.
The provisions of Section 11-35-1520(13) shall apply to competitive sealed proposals.
F. Specified Types of Supplies, Services or Construction.
(1) Pursuant to Section 11-35-3020(1), and the approval requirements of Section 11-35-3010, the following types of supplies, services, or construction may be procured by competitive sealed proposals:
(a) Architect/Engineer services and construction services to be awarded in the same contract for an indefinite delivery of a specialized service (e.g. Hazardous waste remedial action).
(b) Design/Build or Lease-Purchase contracts where there must be selection criteria in addition to price.
(c) Energy conservation or other projects to be financed by vendors who will be paid from the State’s savings.
(d) Supplies, services, or construction, where consideration of alternative methods or systems would be advantageous to the State.
(2) The appropriate Chief Procurement Officer shall develop and issue procedures which shall be followed by all agencies using the competitive sealed proposal method of acquisition.
G. Other Applicable Provisions.
The provisions of the following Regulations shall apply to competitive sealed proposals:
(1) Regulation 19-445.2060, Telegraphic Bids,
(2) Regulation 19-445.2065, Rejection of Bids,
(3) Regulation 19-445.2070, Rejection of Individual Bids,
(4) Regulation 19-445.2075, All or None Qualifications,
(5) Regulation 19-445.2085, Correction or Withdrawal of Bids; Cancellation of Awards, and Cancellation of Awards Prior to Performance.
(6) Regulation 19-445.2135[G], Food Service Contracts.
Text of regulation applicable to solicitations issued after the first Monday in September 2007
A. Request for Proposals.
The provisions of Regulation 19-445.2040 shall apply to implement the requirements of Section 11-35-1530 (2), Public Notice.
B. Receipt and Safeguarding of Proposals.
The provisions of Regulation 19-445.2045 shall apply for the receipt and safeguarding of proposals.
C. Receipt of Proposals.
The provisions of Regulation 19-445.2050(B) shall apply to the receipt and safeguarding of proposals. For the purposes of implementing Section 11-35-1530 (3), Receipt of Proposals, the following requirements shall be followed:
(1) Proposals shall be opened publicly by the procurement officer or his designee in the presence of one or more witnesses at the time and place designated in the request for proposals. Proposals and modifications shall be time-stamped upon receipt and held in a secure place until the established due date. After the date established for receipt of proposals, a Register of Proposals shall be prepared which shall include for all proposals the name of each offeror, the number of modifications received, if any, and a description sufficient to identify the item offered. The Register of Proposals shall be certified in writing as true and accurate by both the person opening the proposals and the witness. The Register of Proposals shall be open to public inspection only after the issuance of an award or notification of intent to award, whichever is earlier. Proposals and modifications shall be shown only to State personnel having a legitimate interest in them and then only on a “need to know” basis. Contents and the identity of competing offers shall not be disclosed during the process of opening by state personnel.
(2) As provided by the solicitation, offerors must visibly mark all information in their proposals that they consider to be exempt from public disclosure.
D. [Repealed]
E. Clarifications and Minor Informalities in Proposals.
The provisions of Sections 11-35-1520(8) and 11-35-1520(13) shall apply to competitive sealed proposals.
F. Specified Types of Construction.
Pursuant to Section 11-35-3020(1), and subject to the approval requirements of Section 11-35-3010, construction may be procured by competitive sealed proposals as follows:
(1) Architect/Engineer services and construction services to be awarded in the same contract for an indefinite delivery of a specialized service (e.g. Hazardous waste remedial action).
(2) Design/Build or Lease Purchase contracts where there must be selection criteria in addition to price.
(3) Energy conservation or other projects to be financed by vendors who will be paid from the State’s savings.
(4) Construction, where consideration of alternative methods or systems would be advantageous to the State.
G. Procedures for Competitive Sealed Proposals.
The appropriate Chief Procurement Officer may develop and issue procedures which shall be followed by all agencies using the competitive sealed proposal method of acquisition. Unless excused by the State Engineer, the Office of State Engineer shall oversee (1) the evaluation process for any procurement of construction if factors other than price are considered in the evaluation of a proposal, and (2) any discussions with offerors conducted pursuant to Section 11-35-1530(6) or subsection I below.
H. Other Applicable Provisions.
The provisions of the following Regulations shall apply to competitive sealed proposals:
(1) Regulation 19-445.2042, Pre-Bid Conferences,
(2) Regulation 19-445.2060, Telegraphic and Electronic Bids,
(3) Regulation 19-445.2075, All or None Qualifications,
(4) Regulation 19-445.2085, Correction or Withdrawal of Bids; Cancellation of Awards, and Cancellation of Awards Prior to Performance.
(5) Regulation 19-445.2137, Food Service Contracts.
I. Discussions with Offerors
(1) Classifying Proposals.
For the purpose of conducting discussions under Section 11-35-1530(6) and item (2) below, proposals shall be initially classified in writing as:
(a) acceptable (i.e., reasonably susceptible of being selected for award);
(b) potentially acceptable (i.e., reasonably susceptible of being made acceptable through discussions); or
(c) unacceptable.
(2) Conduct of Discussions.
If discussions are conducted, the procurement officer shall exchange information with all offerors who submit proposals classified as acceptable or potentially acceptable. The content and extent of each exchange is a matter of the procurement officer’s judgment, based on the particular facts of each acquisition. In conducting discussions, the procurement officer shall:
(a) Control all exchanges;
(b) Advise in writing every offeror of all deficiencies in its proposal, if any, that will result in rejection as non-responsive;
(c) Attempt in writing to resolve uncertainties concerning the cost or price, technical proposal, and other terms and conditions of the proposal, if any;
(d) Resolve in writing suspected mistakes, if any, by calling them to the offeror’s attention.
(e) Provide the offeror a reasonable opportunity to submit any cost or price, technical, or other revisions to its proposal, but only to the extent such revisions are necessary to resolve any matter raised by the procurement officer during discussions under items (2)(b) through (2)(d) above.
(3) Limitations. Offerors shall be accorded fair and equal treatment with respect to any opportunity for discussions and revisions of proposals. Ordinarily, discussions are conducted prior to final ranking. Discussions may not be conducted unless the solicitation alerts offerors to the possibility of such an exchange, including the possibility of limited proposal revisions for those proposals reasonably susceptible of being selected for award.
(4) Communications authorized by Section 11-35-1530(6) and items (1) through (3) above may be conducted only by procurement officers authorized by the appropriate chief procurement officer.
J. Rejection of Individual Proposals.
(1) Proposals need not be unconditionally accepted without alteration or correction, and to the extent otherwise allowed by law, the State’s stated requirements may be clarified after proposals are submitted. This flexibility must be considered in determining whether reasons exist for rejecting all or any part of a proposal. Reasons for rejecting proposals include but are not limited to:
(a) the business that submitted the proposal is nonresponsible as determined under Section 11-35-1810;
(b) the proposal ultimately (that is, after an opportunity, if any is offered, has passed for altering or clarifying the proposal) fails to meet the announced requirements of the State in some material respect; or
(c) the proposed price is clearly unreasonable.
(2) The reasons for cancellation or rejection shall be made a part of the procurement file and shall be available for public inspection.
19-445.2097. Rejection of Proposals.
Text of regulation applicable to solicitations issued after the first Monday in September 2007
A. Unless there is a compelling reason to reject one or more proposals, award will be made to the highest ranked responsible offeror or otherwise as allowed by Section 11-35-1530. Every effort shall be made to anticipate changes in a requirement prior to the date of opening and to notify all prospective offerors of any resulting modification or cancellation.
B. Cancellation of Solicitation Prior to Award.
(1) When it is determined prior to the issuance of an award or notification of intent to award, whichever is earlier, but after opening, that the requirements relating to the availability and identification of specifications have not been met, the request for proposals shall be cancelled. A request for proposals may be cancelled after opening, but prior the issuance of an award or notification of intent to award, whichever is earlier, when such action is consistent with subsection A above and the procurement officer determines in writing that:
(a) inadequate or ambiguous specifications were cited in the solicitation;
(b) specifications have been revised;
(c) the supplies, services, information technology, or construction being procured are no longer required;
(d) the solicitation did not provide for consideration of all factors of cost to the State, such as cost of transporting state furnished property to bidders’ plants;
(e) proposals received indicate that the needs of the State can be satisfied by a less expensive article differing from that on which the proposals were requested;
(f) all otherwise acceptable proposals received are at unreasonable prices;
(g) the proposals were not independently arrived at in open competition, were collusive, or were submitted in bad faith; or
(h) for other reasons, cancellation is clearly in the best interest of the State.
(2) Determinations to cancel a request for proposals shall state the reasons therefor.
C. Extension of Bid Acceptance Period.
Should administrative difficulties be encountered after opening which may delay award beyond offeror’s acceptance periods, the relevant offerors should be requested, before expiration of their offers, to extend the acceptance period (with consent of sureties, if any).
D. Return of Proposals
If a request for proposals is canceled, proposals shall be returned to the offerors.
19-445.2100. Small Purchases and Other Simplified Purchasing Procedures.
A. Authority.
Small purchases (under $50,000) shall be made as provided in Section 11-35-1550. For small purchases over ten thousand dollars, bidders must be provided reasonable time to prepare their bids, no less than seven (7) days after notice is provided as required by Section 11-35-1550(2)(c), unless a shorter time is deemed necessary for a particular procurement as determined in writing by the head of the purchasing agency or his designee. In accordance with Section 11-35-1550(2)(c), an agency may:
(1) solicit written quotes, as further specified in Section 11-35-1550(2)(c);
(2) solicit bids in accordance with Section 11-35-1520, Competitive Sealed Bidding, Section 11-35-1525, Competitive Fixed Price Bidding, or Section 11-35-1528, Competitive Best Value Bidding; or
(3) solicit proposals in accordance with Section 11-35-1530, Competitive Sealed Proposals.
B. Establishment of Blanket Purchase Agreements.
(1) General. A blanket purchase agreement is a simplified method of filling repetitive needs for small quantities of miscellaneous supplies, services, or information technology by establishing “charge accounts” with qualified sources of supply. Blanket purchase agreements are designed to reduce administrative costs in accomplishing small purchases by eliminating the need for issuing individual purchase documents.
(2) Alternate Sources. To the extent practicable, blanket purchase agreements for items of the same type should be placed concurrently with more than one supplier. All competitive sources shall be given an equal opportunity to furnish supplies, services, or information technology under such agreements.
(3) Terms and Conditions. Blanket purchase agreements shall contain the following provisions:
(a) Description of agreement. A statement that the supplier shall furnish supplies, services, or information technology, described therein in general terms, if and when requested by the Procurement Officer, or his authorized representative, during a specified period and within a stipulated aggregate amount, if any. Blanket purchase agreements may encompass all items that the supplier is in a position to furnish.
(b) Extent of obligation. A statement that the State is obligated only to the extent of authorized calls actually placed against the blanket purchase agreement.
(c) Notice of individuals authorized to place calls and dollar limitations. A provision that a list of names of individuals authorized to place calls under the agreement, identified by organizational component, and the dollar limitation per call for each individual shall be furnished to the supplier by the Procurement Officer.
(d) Delivery tickets. A requirement that all shipments under the agreement, except subscriptions and other charges for newspapers, magazines, or other periodicals, shall be accompanied by delivery tickets or sales slips which shall contain the following minimum information:
(1) name of supplier;
(2) blanket purchase agreement number;
(3) date of call;
(4) call number;
(5) itemized list of supplies, services, or information technology furnished;
(6) quantity, unit price, and extension of each item less applicable discounts (unit price and extensions need not be shown when incompatible with the use of automated systems, provided that the invoice is itemized to show this information); and
(7) date of delivery or shipment.
(e) Invoices one of the following statements:
(1) A summary invoice shall be submitted at least monthly or upon expiration of the blanket purchase agreement, whichever occurs first, for all deliveries made during a billing period, identifying the delivery tickets covered therein, stating their total dollar value, and supported by receipted copies of the delivery tickets; or
(2) An itemized invoice shall be submitted at least monthly or upon expiration of the blanket purchase agreement, whichever occurs first, for all deliveries made during a billing period and for which payment has not been received. Such invoices need not be supported by copies of delivery tickets;
(3) When billing procedures provide for an individual invoice for each delivery, these invoices shall be accumulated provided that a consolidated payment will be made for each specified period; and the period of any discounts will commence on final date of billing period or on the date of receipt of invoices for all deliveries accepted during the billing period, whichever is later. This procedure should not be used if the accumulation of the individual invoices materially increases the administrative costs of this purchase method.
C. Competition Under Blanket Purchase Agreement.
Calls against blanket purchase agreements shall be placed after prices are obtained. When concurrent agreements for similar items are in effect, calls shall be equitably distributed. In those instances where there is an insufficient number of BPAs for any given class of supplies, services, or information technology to assure adequate competition, the individual placing the order shall solicit quotations from other sources.
D. Calls Against Blanket Purchase Agreement.
Calls against blanket purchase agreements generally will be made orally, except that informal correspondence may be used when ordering against agreements outside the local trade area. Written calls may be executed. Documentation of calls shall be limited to essential information. Forms may be developed for this purpose locally and be compatible with the Comptroller General’s Office STARS system.
E. Receipt and Acceptance of Supplies or Services.
Acceptance of supplies, services, or information technology shall be indicated by signature and date on the appropriate form by the authorized State representative after verification and notation of any exceptions.
F. Review Procedures.
The governmental body shall review blanket purchase agreement files at least semiannually to assure that authorized procedures are being followed. Blanket purchase agreements shall be issued for a period of no longer than 12 months.
19-445.2105. Sole Source Procurements.
Text of regulation applicable to solicitations issued on or before the first Monday in September 2007
A. Application.
The provisions of this Regulation shall apply to all sole source procurements unless emergency conditions exist as defined in Regulation 19-445.2110.
B. Exceptions.
Sole source procurement is not permissible unless there is only a single supplier. The following are examples of circumstances which could necessitate sole source procurement:
(1) where the compatibility of equipment, accessories, or replacement parts is the paramount consideration;
(2) where a sole supplier’s item is needed for trial use or testing;
(3) [Repealed]
(4) [Repealed]
(5) where the item is one of a kind; and
(6) [Repealed]
The determination as to whether a procurement shall be made as a sole source shall be made by either the Chief Procurement Officer, the head of a governmental body, or designee of either office above the level of the procurement officer. Any delegation of authority by either the Chief Procurement Officer or the head of a governmental body with respect to sole source determinations shall be submitted in writing to the Materials Management Officer. Such determination and the basis therefor shall be in writing. Such officer may specify the application of such determination and the duration of its effectiveness. In cases of reasonable doubt, competition should be solicited. Any request by a governmental body that a procurement be restricted to one potential contractor shall be accompanied by an explanation as to why no other will be suitable or acceptable to meet the need.
Text of regulation applicable to solicitations issued after the first Monday in September 2007
A. Application.
The provisions of this Regulation shall apply to all sole source procurements unless emergency conditions exist as defined in Regulation 19-445.2110.
B. Exceptions.
Sole source procurement is not permissible unless there is only a single supplier. The following are examples of circumstances which could necessitate sole source procurement:
(1) where the compatibility of equipment, accessories, or replacement parts is the paramount consideration;
(2) where a sole supplier’s item is needed for trial use or testing;
(3) [Repealed]
(4) [Repealed]
(5) where the item is one of a kind; and
(6) [Repealed]
C. Written Determination.
The determination as to whether a procurement shall be made as a sole source shall be made by either the Chief Procurement Officer, the head of a purchasing agency, or designee of either office above the level of the procurement officer. Any delegation of authority by either the Chief Procurement Officer or the head of a purchasing agency with respect to sole source determinations shall be submitted in writing to the Materials Management Officer. Such determination and the basis therefor shall be in writing. Such officer may specify the application of such determination and the duration of its effectiveness. In cases of reasonable doubt, competition should be solicited. Any request by a governmental body that a procurement be restricted to one potential contractor shall be accompanied by an explanation as to why no other will be suitable or acceptable to meet the need. The determination must contain sufficient factual grounds and reasoning to provide an informed, objective explanation for the decision. The determination must be authorized prior to contract execution.
19-445.2110. Emergency Procurements.
A. Application.
The provisions of this Regulation apply to every procurement made under emergency conditions that will not permit other source selection methods to be used.
B. Definition.
An emergency condition is a situation which creates a threat to public health, welfare, or safety such as may arise by reason of floods, epidemics, riots, equipment failures, fire loss, or such other reason as may be proclaimed by either the Chief Procurement Officer or the head of a purchasing agency or a designee of either office. The existence of such conditions must create an immediate and serious need for supplies, services, information technology, or construction that cannot be met through normal procurement methods and the lack of which would seriously threaten:
(1) the functioning of State government;
(2) the preservation or protection of property; or
(3) the health or safety of any person.
C. Limitations.
Emergency procurement shall be limited to those supplies, services, information technology, or construction items necessary to meet the emergency.
D. Conditions.
Any governmental body may make emergency procurements when an emergency condition arises and the need cannot be met through normal procurement methods, provided that whenever practical, approval by either the head of a purchasing agency or his designee or the Chief Procurement Officer shall be obtained prior to the procurement.
E. Selection of Method of Procurement.
The procedure used shall be selected to assure that the required supplies, services, information technology, or construction items are procured in time to meet the emergency. Given this constraint, such competition as is practicable shall be obtained.
F. Written Determination.
The Chief Procurement Officer or the head of the purchasing agency or a designee of either office shall make a written determination stating the basis for an emergency procurement and for the selection of the particular contractor. The determination must contain sufficient factual grounds and reasoning to provide an informed, objective explanation for the decision.
19-445.2115. Information Technology Procurements.
A. Authority and Purpose.
Every governmental body, whether using State appropriations or other funds, shall rent, purchase, or lease any information technology, or software, or contract for consulting or other services in the field of information technology only in accordance with these Regulations.
B. Organization.
Every governmental body shall develop in coordination with the designated board officer master plan for Information Technology procurements as defined in Section 11-35-310 of the Procurement Code. Subject to the approval of the master plan by the designated board office, acquisition of Information Technology by governmental bodies shall be through the Information Technology Management Office.
C. Software Licensing
Pursuant to Section 11-35-510 and 11-35-1580, the Information Technology Management Officer may execute an agreement with a business on behalf of, and which binds all, governmental bodies in order to establish the terms and conditions upon which computer software may be licensed, directly or indirectly, from that business by a governmental body. Such an agreement may provide for the voluntary participation of any other South Carolina public procurement unit. Such agreements do not excuse any governmental body from complying with any applicable requirements of the Procurement Code and these Regulations, including the requirements of Section 11-35-1510.
19-445.2120. Cost or Pricing Data.
Text of regulation applicable to solicitations issued after the first Monday in September 2007
A. Definitions
(1) Adequate Price Competition. Price competition exists if competitive sealed proposals are solicited, at least two responsive and responsible offerors independently compete for a contract, and price is a substantial factor in the evaluation. If the foregoing conditions are met, price competition shall be presumed to be “adequate” unless the procurement officer determines in writing that such competition is not adequate.
(2) Established catalog price has the meaning stated in Section 11-35-1410.
(3) Established Market Price means a current price, established in the usual and ordinary course of trade between buyers and sellers, which can be substantiated from sources which are independent of the manufacturer or supplier and may be an indication of the reasonableness of price.
(4) Prices Set by Law or Regulation. The price of a supply or service is set by law or regulation if some governmental body establishes the price that the offeror or contractor may charge the State and other customers.
B. Thresholds
(1) Section 11-35-1830(1)(a) applies where the total contract price exceeds five hundred thousand dollars.
(2) Section 11-35-1830(1)(b) applies where the pricing of any change order, contract modification, or termination settlement exceeds five hundred thousand dollars, unless the procurement officer determines in writing that such information is necessary to determine that the pricing is reasonable. Price adjustment amounts shall consider both increases and decreases (e.g., a $150,000 modification resulting from a reduction of $350,000 and an increase of $200,000 is a pricing adjustment exceeding $500,000.). This requirement does not apply when unrelated and separately priced changes for which cost or pricing data would not otherwise be required are included for administrative convenience in the same modification.
C. Conditions of Waiver
The requirements of Section 11-35-1830 may be waived if the head of the using agency determines in writing that the price can be determined to be fair and reasonable without submission of cost or pricing data.
D. Refusal to Submit Data
A refusal by the offeror to supply the requested information may be grounds to disqualify the offeror or to defer award pending further review and analysis.
19-445.2121. Repealed163) in State Register Volume 23, Issue No. 5, eff May 28, 1999.
19-445.2125. Responsibility of Bidders and Offerors.
A. State Standards of Responsibility.
Factors to be considered in determining whether the state standards of responsibility have been met include whether a prospective contractor has:
(1) available the appropriate financial, material, equipment, facility, and personnel resources and expertise, or the ability to obtain them, necessary to indicate its capability to meet all contractual requirements;
(2) a satisfactory record of performance;
(3) a satisfactory record of integrity;
(4) qualified legally to contract with the State; and
(5) supplied all necessary information in connection with the inquiry concerning responsibility.
B. Obtaining Information; Duty of Contractor to Supply Information.
At any time prior to award, the prospective contractor shall supply information requested by the procurement officer concerning the responsibility of such contractor. If such contractor fails to supply the requested information, the procurement officer shall base the determination of responsibility upon any available information or may find the prospective contractor non responsible if such failure is unreasonable. In determining responsibility, the procurement officer may obtain and rely on any sources of information, including but not limited to the prospective contractor; knowledge of personnel within the using or purchasing agency; commercial sources of supplier information; suppliers, subcontractors, and customers of the prospective contractor; financial institutions; government agencies; and business and trade associations.
C. Demonstration of Responsibility.
The prospective contractor may demonstrate the availability of necessary financing, equipment, facilities, expertise, and personnel by submitting upon request:
(1) evidence that such contractor possesses such necessary items;
(2) acceptable plans to subcontract for such necessary items; or
(3) a documented commitment from, or explicit arrangement with, a satisfactory source to provide the necessary items.
D. Duty Concerning Responsibility.
Before awarding a contract or issuing a notification of intent to award, whichever is earlier, the procurement officer must be satisfied that the prospective contractor is responsible. The determination is not limited to circumstances existing at the time of opening.
E. Written Determination of Nonresponsibility.
If a bidder or offeror who otherwise would have been awarded a contract is found nonresponsible, a written determination of nonresponsibility setting forth the basis of the finding shall be prepared by the procurement officer. A copy of the determination shall be sent promptly to the nonresponsible bidder or offeror. The final determination shall be made part of the procurement file.
F. Special Standards of Responsibility
When it is necessary for a particular acquisition or class of acquisitions, the procurement officer may develop, with the assistance of appropriate specialists, special standards of responsibility. Special standards may be particularly desirable when experience has demonstrated that unusual expertise or specialized facilities are needed for adequate contract performance. The special standards shall be set forth in the solicitation (and so identified) and shall apply to all offerors. A valid special standard of responsibility must be specific, objective and mandatory.
G. Subcontractor responsibility.
(1) Generally, prospective prime contractors are responsible for determining the responsibility of their prospective subcontractors. Determinations of prospective subcontractor responsibility may affect the procurement officer’s determination of the prospective prime contractor’s responsibility. A prospective contractor may be required to provide written evidence of a proposed subcontractor’s responsibility.
(2) When it is in the state’s interest to do so, the procurement officer may directly determine a prospective subcontractor’s responsibility (e.g., when the prospective contract involves medical supplies, urgent requirements, or substantial subcontracting). In this case, the same standards used to determine a prime contractor’s responsibility shall be used by the procurement officer to determine subcontractor responsibility.
19-445.2130. Prequalification of Supplies and Suppliers.
A. Qualified Products Lists.
A qualified products list may be developed with the approval of the Chief Procurement Officer or the procurement officer of the governmental body authorized to develop qualified products lists, when testing or examination of the supplies or construction items prior to issuance of the solicitation is desirable or necessary in order to best satisfy state requirements. The procedures for the inclusion of a product on the qualified products list (“QPL”) must be available to prospective vendors for consideration of their product to the list.
B. Prospective suppliers may be prequalified, and distribution of the solicitation may be limited to prequalified suppliers. Suppliers who meet the prequalification standards at any time shall be added to the prequalified list for subsequent solicitations. The fact that a prospective supplier has been prequalified does not necessarily represent a finding of responsibility.
19-445.2132. Prequalification for a Single Solicitation.
A. Application.
The pre-qualification process shall not be used to unduly limit competition. Any mandatory minimum requirements shall comply with Section 11-35-2730. In a competitive bid, the pre-qualification process is not intended to eliminate bidders capable of completing the work being procured. Before a request for qualifications may be issued pursuant to Section 11-35-1520(11) or 11-35-1530(4), the chief procurement officer or the head of a purchasing agency or either officer’s designee shall prepare a written justification stating the necessity for pre-qualifying offerors. Prior to issuance of the solicitation, each potential offeror seeking qualification must be promptly informed as to whether qualification is attained and, in the event qualification is not attained, is promptly furnished specific information why qualification was not attained.
B. Receipt and Safeguarding of Responses
The provisions of Regulation 19-445.2045 shall apply to the receipt and safeguarding of submittals received in response to a request for qualifications conducted pursuant to Sections 11-35-1520 or 11-35-1530.
19-445.2135. Conditions for Use of Multi-term Contracts.
A. General.
A multi-term contract is a contract for the acquisition of supplies, services, or information technology for more than one year. A contract is not a multi-term contract if no single term exceeds one year and each term beyond the first requires the governmental body to exercise an option to extend or renew. A multi-term contract is appropriate when it is in the best interest of the State to obtain uninterrupted services for a period in excess of one year, where the performance of such services involves high start up costs, or when a changeover of service contracts involves high phase in/phase out costs during a transition period. The multi-term method of contracting is also appropriate when special production of definite quantities of supplies for more than one year is necessary to best meet state needs but funds are available only for the initial fiscal period. Special production refers to production for contract performance when it requires alteration in the contractor’s facilities or operations involving high start up costs.
B. Objective.
The objective of the multi-term contract is to promote economy and efficiency in procurement by obtaining the benefits of sustained volume production and consequent low prices, and by increasing competitive participation in procurements which involve special production with consequent high start-up costs and in the procurement of services which involve high start-up costs or high phase-in/phase-out costs during changeover of service contracts.
C. Exceptions.
This Regulation 19-445.2135 applies only to contracts for supplies, services, or information technology and does not apply to contracts for construction.
D. Conditions for Use.
(1) A multi-term contract may be used if , prior to issuance of the solicitation, the Procurement Officer determines in writing that:
(a) Special production of definite quantities or the furnishing of long term services are required to meet state needs; or
(b) a multi-term contract will serve the best interests of the state by encouraging effective competition or otherwise promoting economies in state procurement.
(2) The following factors are among those relevant to such a determination:
(a) firms which are not willing or able to compete because of high start up costs or capital investment in facility expansion will be encouraged to participate in the competition when they are assured of recouping such costs during the period of contract performance;
(b) lower production cost because of larger quantity or service requirements, and substantial continuity of production or performance over a longer period of time, can be expected to result in lower unit prices;
(c) stabilization of the contractor’s work force over a longer period of time may promote economy and consistent quality;
(d) the cost and burden of contract solicitation, award, and administration of the procurement may be reduced.
(3) The determination must contain sufficient factual grounds and reasoning to provide an informed, objective explanation for the decision.
E. Solicitation.
The solicitation shall state:
(1) the estimated amount of supplies or services required for the proposed contract period;
(2) that a unit price shall be given for each supply or service, and that such unit prices shall be the same throughout the contract (except to the extent price adjustments may be provided in the solicitation and resulting contract);
(3) that the multi-term contract will be cancelled only if funds are not appropriated or otherwise made available to support continuation of performance in any fiscal period succeeding the first; however, this does not affect either the state’s rights or the contractor’s rights under any termination clause in the contract;
(4) that the procurement officer of the governmental body must notify the contractor on a timely basis that the funds are, or are not, available for the continuation of the contract for each succeeding fiscal period;
(5) whether bidders or offerors may submit prices for:
(a) the first fiscal period only;
(b) the entire time of performance only; or
(c) both the first fiscal period and the entire time of performance;
(6) that a multi-term contract may be awarded and how award will be determined including, if prices for the first fiscal period and entire time of performance are submitted, how such prices will be compared; and,
(7) that, in the event of cancellation as provided in (E) (3) of this subsection, the contractor will be reimbursed the unamortized, reasonably incurred, nonrecurring costs.
F. Award.
Award shall be made as stated in the solicitation and permitted under the source selection method utilized. Care should be taken when evaluating multi-term prices against prices for the first fiscal period that award on the basis of prices for the first period does not permit the successful bidder or offerer to “buy in”, that is give such bidder or offeror an undue competitive advantage in subsequent procurements.
G. Maximum Contract Periods
Prior to opening, a contract with a total potential duration in excess of five years must be approved as required by Section 11-35-2030(4).
19-445.2137. Food Service Contracts.
Any food service contracts entered into by any governmental body shall be solicited by the Materials Management Office under Code Section 11-35-1530, Competitive Sealed Proposals, and Regulation 19-445.2095. A review panel composed of one representative each from the governmental body, the Materials Management Office, and the Commission on Higher Education shall review such proposals and approve it prior to the issuance of an award or notification of intent to award, whichever is earlier.
19-445.2140. Specifications.
A. Definitions.
(1) “Brand Name Specification” means a specification limited to one or more items by manufacturers’ names or catalogue number.
(2) “Brand Name or Equal Specification” means a specification which uses one or more manufacturer’s names or catalogue numbers to describe the standard of quality, performance, and other characteristics needed to meet state requirements, and which provides for the submission of equivalent products.
(3) “Qualified Products List” means an approved list of supplies, services, information technology, or construction items described by model or catalogue number, which, prior to competitive solicitation, the State has determined will meet the applicable specification requirements.
(4) “Specification” means any description of the physical, functional, or performance characteristics, or of the nature of a supply, service, information technology, or construction item. A specification includes, as appropriate, requirements for inspecting, testing, or preparing a supply, service or construction item for delivery. Unless the context requires otherwise, the terms “specification” and “purchase description” are used interchangeably throughout the Regulations.
(5) “Specification for a Common or General Use Item” means a specification which has been developed and approved for repeated use in procurements.
B. Issuance of Specifications.
The purpose of a specification is to serve as a basis for obtaining a supply, service, information technology, or construction item adequate and suitable for the State’s needs in a cost effective manner, taking into account, to the extent practicable, the cost of ownership and operation as well as initial acquisition costs. It is the policy of the State that specifications permit maximum practicable competition consistent with this purpose. Specification shall be drafted with the objective of clearly describing the State’s requirements. All specifications shall be written in a non restrictive manner as to describe the requirements to be met.
C. Use of Functional or Performance Descriptions.
Specifications shall, to the extent practicable, emphasize functional or performance criteria while limiting design or other detailed physical descriptions to those necessary to meet the needs of the State. To facilitate the use of such criteria, using agencies shall endeavor to include as a part of their purchase requisitions the principal functional or performance needs to be met. It is recognized, however, that the preference for use of functional or performance specifications is primarily applicable to the procurement of supplies, services, and information technology. Such preference is often not practicable in construction, apart from the procurement of supply type items for a construction project.
D. Preference for Commercially Available Products.
It is the general policy of this State to procure standard commercial products whenever practicable. In developing specifications, accepted commercial standards shall be used and unique requirements shall be avoided, to the extent practicable.
E. [Repealed]
F. [Repealed]
19-445.2145. Construction, Architect Engineer, Construction Management, and Land Surveying Services.
A. Method of Construction Contract Administration.
This Subsection contains provisions applicable to the selection of the appropriate method of administration for construction contracts, that is, the contracting method and configuration which is most advantageous to the State and will result in the most timely, economical, and otherwise successful completion of the construction project.
(1) Selecting the Method of Construction Contracting.
In selecting the construction contracting method, the governmental body should consider the results achieved on similar projects in the past and the methods used. Consideration should be given to all appropriate and effective methods and their comparative advantages and disadvantages and how they might be adapted or combined to fulfill state requirements.
(2) Flexibility.
The governmental body, shall have sufficient flexibility in formulating the project delivery approach on a particular project to fulfill the State’s needs. In each instance, consideration should be given to all the appropriate and effective means of obtaining both the design and construction of the project.
(3) Criteria for Selection.
(a) Before choosing the construction contracting method, a careful assessment must be made by the purchasing agency of requirements the project must satisfy and those other characteristics that would be in the best interest of the State.
(b) The amount and type of financing available for the project is relevant to the selection of the appropriate construction contracting method including what sources of funding are available.
(c) The governmental body should consider whether a price can be obtained that is fair and reasonable when considered together with the benefit to the State potentially obtainable from such a contract.
(4) Governmental Body Determination.
The head of the purchasing agency shall make a written determination that must be reviewed by the Chief Procurement Officer. The determination shall describe the construction contracting method chosen and set forth the facts and considerations which led to the selection of that method. This determination shall demonstrate that the requirements and financing of the project were all considered in making the selection. No written determination is required for projects with a total potential value of less than ten million dollars if (i) the project delivery method is design-bid-build, and (ii) the source selection method is competitive sealed bidding, and (iii) the contract amount is a fixed price.
B. Construction Procurement--The Invitation for Bids.
The provisions of Regulation 19-445.2040 shall apply to implement the requirements of Section 11-35-3020(2)(a), Invitation for Bids.
C. Bonds and Security.
(1) Bid Security. Bid Security shall be a certified cashier’s check or a bond provided by a surety company licensed in South Carolina with an “A” minimum rating of performance as stated in the most current publication of “Best Key Rating Guide, Property Liability”, which company shows a financial strength rating of at least five (5) times the contract price. In the case of a construction contract under $100,000, the agency may, upon written justification and with the approval of the Office of the State Engineer, allow the use of a “B+” “ rated bond when bid security is required. Each bond shall be accompanied by a “Power of Attorney” authorizing the attorney in fact to bind the surety.
(2) Contract Performance and Payment Bonds. The contractor shall provide a certified cashier’s check in the full amount of the Performance and Payment Bonds or may provide, and pay for the cost of, Performance and Payment Bonds in the form of AIA Document A311 “PERFORMANCE BOND AND LABOR AND MATERIAL BOND”. Each bond shall be in the full amount of the Contract Sum, issued by a Surety Company licensed in South Carolina with an “A” minimum rating of performance as stated in the most current publication of “Best Key Rating Guide, Property Liability”, which company shows a financial strength rating of at least five (5) times the contract price. In the case of construction under $50,000, the agency may, upon written justification and with the approval of the Office of the State Engineer, allow the use of a “B+” “ rated bond when bid security is required. Each bond shall be accompanied by a “Power of Attorney” authorizing the attorney in fact to bind the surety.
D. Architect Engineer, Construction Management and Land Surveying Services Procurement.
(1) The Advertisement of Project Description
The provisions of Regulation 19-445.2040 shall apply to implement the requirements of Code Section 11-35-3220(2), Advertisement of Project Description.
(2) State Engineer’s Office Review.
The Office of State Engineer will provide forms in the Manual for Planning and Execution of State Permanent Improvements Projects-Part II for use by governmental bodies in submitting a contract for approval pursuant to Section 11-35-3220(8) of the Code.
E. Contract Forms.
Pursuant to Code Section 11-35-2010(2), the following Contract Forms, whose AIA Edition, if any, is designated in the Manual for Planning and Execution of State Permanent Improvement - Part II, shall be used, as applicable.
(1) Contracts for Services may be as follows:
(a) Land surveyor: The agency may use a letter contract written for each individual project. The format and description of services shall be approved by the State Engineer.
(b) Architect Engineer: The agency may use AIA Document B141, with Article 12, Other Conditions or Services as prepared by the State Engineer and Article 13 prepared by the agency or Architect Engineer.
(c) Architect Engineer/Construction Management: For the Architect Engineer, the agency may use B141/CM, with Article 15 prepared by the State Engineer and Article 16 prepared by the agency or Architect Engineer. For the managers, it may use AIA Document B801, with Article 16 prepared by the State Engineer and Article 17 prepared by the agency or construction manager.
(d) Construction: the agency may use AIA Document A101, 1987 Edition or AIA Document A101/CM. Other contract forms may be used as are approved by the State Engineer.
(e) For Contracts under Procurement Code Section 11-35-3230, the agency may use a letter contract written for each individual project. The format and description of services shall be as approved by the State Engineer.
(f) For Construction under Procurement Code Section 11-35-1550, the agency may use a letter contract written for each individual project. The format and description of services shall be as approved by the State Engineer.
(2) Bidding Documents may be as follows:
(a) Instruction to bidders may be AIA Document A701, with Article 9 prepared by the State Engineer and Article 10 prepared by the agency or Architect Engineer.
(b) General Conditions of the Contract for Construction may be AIA Document A201, with Supplementary Conditions Part 2 prepared by the agency or Architect Engineer; or AIA A201/CM, with Supplementary Conditions Part 1 prepared by the state Engineer and Supplementary Conditions Part 2 prepared by the agency or Architect Engineer/Construction Manager.
(c) Bid Form and Change Order prepared by the State Engineer may be used.
(d) [None]
(e) Construction under Procurement Code Section 11-35-1550 and 11-35-1530 may be in a format and description of services approved by the State Engineer.
F. Manual for Planning and Execution of State Permanent Improvements Projects-Part II.
For the purpose of these Regulations and Code Section 11-35-3240, a manual of procedures to be followed by governmental bodies for planning and execution of state permanent improvement projects is prepared and furnished by the designated board office, and included in this regulation. Part II of this manual, covering the procurement of construction for the projects, will be the responsibility of the Office of the State Engineer.
G. Prequalifying Construction Bidders. In accordance with Section 11-35-1825, the State Engineer’s Office shall develop a procedure and a list of criteria for prequalifying construction bidders and sub-bidders, and shall include it in the Manual for Planning and Execution of State Permanent Improvements-Part II.
H. With regard to Section 11-35-3310, the State Engineer’s Office will establish working procedures for indefinite delivery construction contracts, and shall include them in the Manual for Planning and Execution of State Permanent Improvements-Part II.
19-445.2150. Surplus Property Management.
(Statutory Authority: 1976 Code Section 11-35-3810)
A. Definition, Authority and Mission.
(1) Definition.
Surplus property is all State-owned supplies and equipment, not in actual public use, with remaining useful life and available for disposal. This definition and the ensuing regulations exclude the disposal of solid and hazardous wastes as defined by any federal, state or local statutes and regulations. Property so defined as solid or hazardous waste shall not be relocated, nor title assumed under the authority of these regulations.
(2) Authority.
The disposition of all surplus property shall be conducted by the Division of General Service’s Surplus Property Management Office (SPMO) at such places and in such manner determined most advantageous to the State, except as defined in Section 11-35-1580 of the Procurement Code. All government bodies must identify surplus items and declare them as such, and report them in writing to the Materials Management Officer or the Information Technology Management Officer (ITMO), or the designee of either, within one hundred and eighty (180) days from the date they become surplus. The SPMO shall deposit the proceeds from such disposition, less expense of the disposition, in the State’s General Fund unless a government body makes a written request to retain such proceeds, less cost of disposition, for the purchase of like kind property and the Materials Management Officer or ITMO, or the designee of either, approves such request
(3) Mission.
The primary mission of the Surplus Property Management Program shall be to receive, warehouse and dispose of the State’s surplus property in the best interest of the State. The central warehousing of State surplus property will allow all State governmental bodies and other political subdivisions one location to acquire needed property which otherwise might escape the system and be sold to the public.
The purpose of this program is to provide the following:
1. elimination of costs related to the warehousing, insurance and accounting systems necessary to fulfill an agency’s surplus property responsibility,
2. maximization of proceeds by disposing of property as soon as possible after it becomes excess to an agency’s needs,
3. establishment of priorities in the disposal process that encourage keeping assets in public use as long as possible,
4. conversion of unneeded fixed assets into available funds on a timely basis for offsetting the cost of new like equipment.
B. Reporting and Relocation of Surplus Property.
(1) Reporting.
Within ninety (90) days from the date property becomes surplus, it must be reported to the SPMO on a turn-in document (TID) designed by the SPMO. The description, model or serial number, acquisition cost, date of purchase and agency ID number shall be listed for each item.
Upon receipt of the TID, the SPMO will screen the property to determine whether it is surplus or junk as defined in these regulations.
(2) Property Relocation.
Surplus property reported shall be scheduled for relocation to the SPMO, Boston Avenue, West Columbia; or, upon consultation and agreement with the generating governmental body, remain at the governmental body’s site if deemed by the SPMO to be a more cost-effective method for disposal. All costs associated with relocation of property will be borne by the SPMO, except property as defined in these regulations under Subsection C, Item 2, A and B.
At such time as property is officially received by the SPMO, title will pass to the Division of General Services and shall be accounted for as described herein. Governmental bodies shall delete insurance coverage on such property. The SPMO shall carry sufficient insurance to ensure these assets are safeguarded against loss. Governmental bodies shall delete such property from their fixed asset records at this point of transfer.
Upon disposal of the property, the proceeds, less cost of disposition, will be returned to the authorized revenue center if so requested and authorized in accordance with these regulations.
If determined to be junk, disposal will be the responsibility of the generating governmental body in accordance with Section 11-35-4020 of the Procurement Code.
C. Transfer of Surplus Property to Governmental Bodies, Political Subdivisions, and Eligible Nonprofit Health or Education Institutions.
(1) Eligibility.
The SPMO’s primary role shall be to relocate surplus property to eligible governmental bodies, political subdivisions and nonprofit health and educational institutions. The Manager of Supply and Surplus Property Management shall be responsible for determining an applicant’s eligibility prior to any transfer of property.
The term governmental bodies means any State government department, commission, council, board, bureau, committee, institution, college, university, technical school, legislative body, agency government corporation, or other establishment or official of the executive, judicial, or legislative branches of the State. Governmental body excludes the General Assembly and all local political subdivisions such as counties, municipalities, school districts or public service or special purpose districts.
The term political subdivisions includes counties, municipalities, school districts or public service or special purpose districts.
The term eligible nonprofit health or educational institutions means tax-exempt entities, duly incorporated as such by the State.
The SPMO will maintain sufficient records to support the eligibility status of these entities.
(2) Determination of Sale Price.
The sale price for all items will be established by the Manager of Supply and Surplus Property Management, or the Manager’s designee. The Manager or the Manager’s designee shall have the final authority to accept or reject bids received via public sale. The following categories and methods will be used:
(a) Vehicles: NADA loan value shall be used for the sale price. In certain instances, the most recent public sale figures and consultation with the generating governmental body shall be the basis for a sale price.
(b) Boats, motors, heavy equipment, farm equipment, airplanes and other items with an acquisition cost in excess of $5,000: The sale price shall be set from the most recent public sale figures and/or any other method necessary to establish a reasonable value including consultation with the generating governmental body.
(c) Miscellaneous items with an acquisition cost of $5,000 or less such as office furniture and machines, shop equipment, cafeteria equipment, etc.: A sale price will be assessed in accordance with the current fair market value.
(3) Terms and Conditions on Property Transferred from Warehouse.
For any purchases made under this subsection, the purchasing entity will certify that all items acquired will be for the sole benefit of the buying institution and that no personal use will be involved. This certification will be formalized by the agreement signed at the time eligibility is established. The following terms and conditions will be set forth therein:
(1) Property must be placed into public use within one (1) year of acquisition and remain in use one (1) year from the date placed into actual use.
(2) Property which becomes unusable may be disposed of prior to the one-year limitation with the approval of the SPMO.
A utilization visit may be made by authorized personnel of the SPMO. All vehicles and property with an acquisition cost in excess of $5,000 require a utilization review during the twelve-month period from date of transfer to ensure the property is in public use.
(A) Any misuse of property will be reported in writing to the SPMO’s State Surplus Property Supervisor or his successor by the utilization staff of the SPMO. The State Surplus Property Supervisor or his successor will consult with the designee of the Materials Management Officer or the ITMO who shall have the authority to suspend all further purchases until a determination can be made under Subsection B. If warranted, the matter shall be referred to the proper law enforcement authority for full investigation.
(B) Upon determination that misuse of property has occurred, purchasing privileges will be terminated and not restored until the buying governmental body, political subdivision, or nonprofit health or educational institution pays to the SPMO the fair market value of the item(s) misused or returns the misused property to the SPMO.
(4) Disposition Cycles for Surplus Property.
An appropriate cycle methodology as determined in the SPMO’s sole discretion shall be used for the disposal process of surplus property, beginning with the Monday (if this is a state holiday, the cycle will begin on the first business day of the week) following the week during which the property is processed by the SPMO. Governmental bodies, political subdivisions and nonprofit health and educational institutions, and any other qualifying donees will be given priority over the general public to acquire the property.
Special items and heavy equipment, will generally follow the same disposal procedures as other property. When vehicles are the items in question, they will be held for two weeks to allow State agencies purchasing priority. However, the SPMO shall have the right to deviate from these procedures if it is in the best interest of the state. In cases where cost avoidance, space requirements, accessibility and manpower are considerations, the SPMO shall have the authority to bypass individual sales to the general public and offer these items to eligible donees first and, if not disposed of, then dispose of them through public auction. The SPMO must document that such procedure is advantageous to the State.
D. Public Sale of Surplus Property.
(1) Public Sale Cycle.
Upon completion of an appropriate distribution cycle, the remaining items shall be made available to the public. Donees and the general public may purchase in this period, but without priority. This period has no minimum or maximum length and is determined by warehouse space and scheduled incoming property. There will also be times when property will not be made available for a Public Cycle Sale.
(2) Final Disposition by Competitive Public Sale.
Upon completion of the public sale cycle, all surplus property shall be offered through competitive sealed bids or public auction.
When surplus property is sold via the competitive sealed bid process, notification of such sale shall be given through a Notice of Sale to be posted at the SPMO at least fifteen (15) days prior to the bid opening date. The sale shall also be announced through advertisement in newspapers of general circulation and/or the South Carolina Business Opportunities publication. The Notice of Sale shall list the supplies or property offered for sale; designate the location and how property may be inspected; and state the terms and conditions of sale and instructions to bidders including the place, date, and time set for bid opening. Bids shall be opened publicly.
Award shall be made in accordance with the provisions set forth in the Notice of Sale and to the highest responsive and responsible bidder provided that the price offered by such bidder is deemed reasonable by the designee of the MMO or ITMO, or his designee. Where such price is not deemed reasonable, the bids may be rejected in whole, or in part, and the sale negotiated beginning with the highest bidder provided the negotiated sale price is higher than the highest responsive and responsible bid. In the event of a tie bid the award will be made in accordance with the tie bid procedure set forth in Section 11-35-1520(9) of the Consolidated Procurement Code.
Property may also be sold at a public auction by an experienced auctioneer. The Notice of Sale shall include, at a minimum, all terms and conditions of the sale and a statement clarifying the authority of the designee of the MMO or ITMO, or his designee, to reject any and all bids. These auctions will be advertised in a newspaper of general circulation or on the radio, or both.
(3) Other Means of Disposal.
Some types and classes of items can be sold or disposed of more economically by some other means of disposal including barter. In such cases, and also where the nature of the supply or unusual circumstances necessitate its sale to be restricted or controlled, the Materials Management Officer may employ such other means, including but not limited to appraisal, provided the Materials Management Officer or Information Technology Management Officer makes a written determination that such procedure is advantageous to the State.
(4) Designation of Surplus Property.
Upon written determination by the SPMO that surplus property items are needed to comply with programs authorized by the legislature or by executive order of the governor exercising his statutory authority, the SPMO may designate surplus property items for disposal in order to comply with the program requirements. The SPMO will develop and implement internal guidelines and procedures for the disposal of surplus property items designated as necessary to comply with the program requirements established by the legislature or the governor.
E. Fee Schedule.
The State Surplus Property Management Program will operate solely from service charges retained from the sale of surplus property. The Board shall establish a fee schedule sufficient to fund all program costs and it shall be reviewed by the Board as required to ensure the adequacy and equity of the Program.
F. Inventory and Accounting Systems.
(1) Forms.
Turn-in documents designed by the Surplus Property Office shall be used by all governmental bodies for reporting surplus property to the SPMO. It shall be the responsibility of the generating governmental body to obtain these forms and to furnish all information required on the form. Items received by the SPMO shall be physically checked by the SPMO against the turn-in document and a signed receipt issued to the governmental body.
(2) Tagging.
Items received by the SPMO shall be assigned an inventory number and data including generating governmental body, name, description of property, quantity, original acquisition cost, date purchased, serial or model number and other relevant information entered into an automated inventory system. Inventory tags listing all necessary information shall be attached to each item.
(3) Display.
Items shall be displayed in locations with other like commodities to allow for easy viewing.
(4) Issuing property.
All items sold by the SPMO to governmental bodies, political subdivisions and nonprofit health or educational institutions shall be recorded on a Bill of Sale and all required information shall be listed on the document. The Bill of Sale must be signed by the signatory authority of the governmental body, political subdivision or nonprofit health or educational institution as defined in Subsection C, Item 1 of these regulations. At the time of sale, the eligible entity shall receive a copy of the Bill of Sale.
(5) Invoicing.
Invoices shall be generated and mailed to the acquiring agency. All cash and accounts receivable transaction records shall be property maintained. All transfers of funds to various accounts will be performed in accordance with these regulations.
(6) Deletions.
Items shall be deleted from the SPMO’s inventory simultaneously with the invoicing process or by written justification from the Surplus Property Management Officer or his designee.
(7) Property sold to the public shall be paid for in full at the time of purchase.
Transactions shall be documented by a Bill of Sale enumerating all conditions of the sale i.e., “as is, where is,” etc. and must be signed by the purchaser. Personal checks with proper identification, certified checks, or money orders made payable to the State of South Carolina or cash shall be accepted as a form of payment. A copy of the Bill of Sale shall be presented to the purchaser and a copy along with the payment shall be forwarded to the Internal Operations Cashier. Two copies shall be retained internally by the SPMO, one as the source document for updating the computer records and the other for filing.
G. Trade In Sales.
Governmental bodies may trade in personal property, whose original unit purchase price did not exceed $5,000, the trade in value of which must be applied to the purchase of new items. When the original unit purchase price exceeds $5,000, the governmental body shall refer the matter to the Materials Management Officer, the ITMO, or the designee of either, for disposition.
The Materials Management Officer or the ITMO, or the designee of either, shall have the authority to determine whether the property shall be traded in and the value applied to the purchase of new like items or classified as surplus and sold in accordance with the provisions of Section 11-35-3820 of the Procurement Code. When the original purchase price exceeds $100,000, the Materials Management Officer, the ITMO, or the designee of either, shall make a written determination as to its reasonableness and document such trade-in transaction.
H. Definition and Sale of Junk.
Junk is State-owned supplies and equipment having no remaining useful life in public service or the cost to repair or to refurbish the property in order to return it to public use would exceed the value of like used equipment with remaining useful life.
I. Unauthorized Disposal.
(1) The ratification of an act of unauthorized and/or improper disposal of State property by any persons without the requisite authority to do so by an appointment or delegation under the Procurement Code rests with the Surplus Property Management Officer.
(2) Corrective Action and Liability.
In all cases, the head of the purchasing agency shall prepare a written determination describing the facts and circumstances surrounding the act, corrective action being taken to prevent recurrence, and action taken against the individual committing the act and shall report the matter in writing to the Surplus Property Management within ten (10) days after the determination.
J. Authority to Debar or Suspend.
The procedures and policies set forth in Section 11-35-4220 of the Procurement Code shall apply to the disposal of State property. The authority to debar a person from participation in the public sales of State-owned property shall rest with the Materials Management Officer.
19-445.2152. Leases, Lease/Payment, Installment Purchase, and Rental of Personal Property.
A. Justification. A governmental body proposing to enter into an agreement other than an outright purchase is responsible for the justification of such action. Lease, lease/purchase, installment purchase, or rental agreements are subject to the procedures of the Procurement Code and these Regulations.
B. Procedures. Upon written justification by the procurement officer of the governmental body of such alternate method, the following procedures will be followed:
(1) The State of South Carolina Standard Equipment Agreement will be used in all cases unless modifications are approved by the designated board officer or his designee. A purchasing agency may enter into an agreement for the rental of equipment without using the Standard Equipment Agreement when the agreement has a total potential value of fifteen thousand dollars or less or the agreement does not exceed ninety days in duration.
(2) Installment purchases will require the governmental body to submit both a justification and purchase requisition to the appropriate chief procurement officer or his designee for processing.
(3) All lease/purchase and installment sales contracts must contain an explicitly stated rate of interest to be incurred by the State under the contract.
19-445.2155. Intergovernmental Relations.
A. Selective Mandatory Opting.
As provided in the solicitation, local political subdivisions such as counties, municipalities, school districts, public service or special purpose districts and the Federal Government may purchase from or through the State at any time. When the appropriate chief procurement officer determines prior to establishment of a contract that localities must mandatorily opt in or out of the contract, the following procedures shall be followed:
(1) Sixty (60) days prior to establishment of a particular contract, the appropriate chief procurement officer shall publicly notify local political subdivision of the mandatory opting requirement; and
(2) Require local political subdivisions to advise the appropriate chief procurement officer within 30 days of its desire to participate in the contract.
19-445.2160. Assistance to Minority Businesses.
Subsection A. Definitions
(1) “Minority Person” means a United States citizen who is economically and socially disadvantaged.
(2) “Socially disadvantaged individuals” means those individuals who have been subject to racial or ethnic prejudice or cultural bias because of their identification as members of a certain group without regard to their individual qualities. Such groups include, but are not limited to, Black Americans, Hispanic Americans, Native Americans (including American Indians, Eskimos, Aleuts and Native Hawaiians), Asian Pacific Americans, Women and other minorities to be designated by the South Carolina Budget and Control Board or designated agency.
(3) “Economically disadvantaged individuals” means those socially disadvantaged individuals whose ability to compete in the free enterprise system has been impaired due to diminished capital and credit opportunities as compared to others in the same business area who are not socially disadvantaged.
(4) “A socially and economically, disadvantaged small business” means any small independent business concern which:
(a) At a minimum is fifty one (51) percent owned by one or more citizens of the United States who are determined to be socially and economically disadvantaged and who also exercise control over the business per 49 CFR Part 26, Subpart D (2006), as amended.
(b) In the case of a corporation, at a minimum, fifty-one (51) percent of all classes of voting stock of such corporation must be owned by an individual or individuals determined to be socially and economically disadvantaged who also exercise control over the business.
(c) In the case of a partnership, at a minimum, fifty-one (51) percent of the partnership interest must be owned by an individual or individuals determined to be socially and economically disadvantaged who also exercise control over the business.
(5) “Small Business” means a for-profit concern, including its affiliates, that is independently owned and operated, not dominant in the field of operation in which it is bidding on government contracts, and qualified as a small business under the criteria and size standards in 13 C.F.R. Section 121 (1996), as amended. Such a concern is “not dominant in its field of operation” when it does not exercise a controlling or major influence on a national basis in a kind of business activity in which a number of business concerns are primarily engaged. In determining whether dominance exists, consideration shall be given to all appropriate factors, including volume of business, number of employees, financial resources, competitive status or position, ownership or control of materials, processes, patents, license agreements, facilities, sales territory, and nature of business activity.
(6) “Minority Business Enterprise” is a business which has been certified as a socially and economically disadvantaged small business.
(7) “OSMBA” means the Office of Small and Minority Business Assistance.
Subsection B. Certification as a Minority Business Enterprise (MBE)
(1) A South Carolina business seeking certification as a Minority Business Enterprise must submit to OSMBA an application and any supporting documentation as may be required.
(2) Certification Process. The Certification Board within OSMBA will determine if the business is controlled and operated by socially and economically disadvantaged individuals. Upon recommendation of the Certification Board, OSMBA will certify the business as a socially and economically disadvantaged small business and issue a Certification as authorized by Section 11-35-5270 of the Procurement Code. Firms may re-apply to OSMBA one year after denied certification. Certifications are valid for five years. Firms may apply for re-certification by submitting an application and required supporting documents of eligibility.
Subsection C. Certification Board/Procedures
(1) The certification board, as defined below, is responsible for reviewing files and applications in order to determine whether a business should be recommended for approval or disapproval by the Director of the OSMBA (hereinafter referred to as the Director) as a certified business in compliance with Article 21.
(2) The certification board shall include three (3) members of the Office in which the OSMBA is located and is chaired by a member selected by the Director. The board will meet at the request of the Director.
(3) Applications for certification must be addressed to the Director. Upon receipt, OSMBA shall conduct an investigation of the applicant and provide the results to the Certification Board. Failure to furnish requested information will be grounds for denial or revocation of certification.
Subsection D. Eligibility
In order for a firm to be certified, the business must have an office in South Carolina, duly registered and licensed as a South Carolina business, it must be found to be a small independent business owned and controlled by a person or persons who are socially and economically disadvantaged. The following factors will be considered in determining whether the applicant is eligible for certification:
(1) Small Business
The business must meet the definition of small business contained in Subsection A hereof.
(2) Independent Business
a. Recognition of the business as a separate entity for tax or corporate purposes is not necessarily sufficient for certification under Article 21. In determining whether an applicant for certification is an independent business, OSMBA shall consider all relevant factors, including the date the business was established, the adequacy of its resources, and relationships with other businesses.
b. A joint venture is eligible if one of the certified business partners of the joint venture meets the standards of a socially and economically disadvantaged small business and this partner’s share in the ownership, control and management responsibilities, risks and profits of the joint venture is at least 51 percent, and this partner is also responsible for a clearly defined portion of the work to be performed.
(3) Ownership and Control
a. The business must be 51 percent owned by socially and economically disadvantaged persons. The OSMBA will examine closely any recent transfers of ownership interests to insure that such transfers are not to be made for the sole purpose of obtaining certification.
b. Ownership shall be real, substantial and continuing and shall go beyond the pro forma structure of the firm as reflected in its ownership documents. The minority owners shall enjoy the customary incidents of ownership and shall share in the risks and profits commensurate with their ownership interests, as demonstrated by an examination of the substance rather than form of ownership arrangements.
c. The contribution of capital or expertise by the minority or women owners to acquire their interest in the business shall be real and substantial. Examples of insufficient contributions include gifts, inheritance, a promise to contribute capital, a note payable to the business or its owners who are not socially disadvantaged and economically disadvantaged, or the participation as an employee, rather than as a manager.
d. The minority owners must have management responsibilities and capabilities including the ability to hire and fire personnel at the highest level and to exercise financial control. A previous and/or continuing employer-employee relationship between or among present owners is carefully reviewed.
e. Where the actual management of the firm is contracted out to individuals other than the owner, those persons who have the ultimate power to hire and fire the managers can, for the purpose of this part, be considered as controlling the business.
f. Any relationship between a business that is applying for certification under Article 21 and a business which is not certified will be carefully reviewed to determine if there are conflicts with the ownership and control requirement of this section.
g. All securities which constitute ownership and/or control of a business for purposes of establishing it as a Minority shall be held directly by minorities. No securities held in trust, or by any guardian for a minor, shall be considered in determining ownership or control.
(4) Socially Disadvantaged
The only factor to be considered in determining whether a firm is socially disadvantaged is membership in a minority group which is listed in Subsection A hereof. Membership shall be established on the basis of the individual’s claim that he or she is a member of one of the minority groups included in the definition of socially disadvantaged in Subsection A above and is so regarded by that particular group.
(5) Economically Disadvantaged
a. OSMBA will make a determination of whether a firm is socially disadvantaged before proceeding to make a determination of economic disadvantage. If OSMBA determines that the business owner is not socially disadvantaged, it is not necessary to make the economically disadvantaged determination.
b. OSMBA may consider as evidence of the business owner’s economic disadvantage the following: unequal access to credit or capital; acquisition of credit under unfavorable circumstances; difficulty in meeting requirements to receive government contracts; discrimination by potential clients; exclusion from business or professional organizations; and other similar factors which have restricted the owner’s business development.
c. In determining the degree of diminished credit and capital opportunities of a socially disadvantaged individual, consideration will be given to both the disadvantaged individual and the business with which he or she is affiliated.
d. In considering the economic disadvantages of businesses and owners, OSMBA will make a comparative judgement about relative disadvantage. The test is not absolute deprivation, but rather whether the individuals and businesses owned by such individuals are disadvantaged in this respect.
e. It is the responsibility of an applicant business and its owner(s) to provide information to OSMBA about its economic situation when it seeks certification. OSMBA will be making a judgement about whether the applicant business and its socially disadvantaged owner(s) are in a more difficult economic situation than most businesses (including established businesses) and owners who are not socially disadvantaged. OSMBA is not required to make a detailed, point-to-point, accountant like comparison of the businesses involved.
Subsection E. Decertification
OSMBA reserves the right to cancel a certification at any time if a business becomes ineligible after certification. OSMBA will take action to ensure that only firms meeting the eligibility requirements stated herein qualify for certification. OSMBA will also review the eligibility of businesses with existing certifications to ensure that they remain eligible. A business organization’s, ownership or control can change over time resulting in a once eligible business becoming ineligible. Certified businesses must notify OSMBA, in writing within 30 days, of changes in organization, ownership or control. When OSMBA determines that an existing business may no longer be eligible, it will file a Complaint with the Certification Board, and send a copy of the Complaint by certified mail to the business. Upon receipt of such a complaint, the Certification Board shall conduct a hearing in accordance with the procedures set forth in the Administrative Procedures Act (Section 1-23-310, et seq., Code of Laws of South Carolina, 1976, as amended).
19-445.2165. Gifts
A. Policy
It is the policy of the State that a governmental body should not accept or solicit a gift, directly or indirectly, from a donor if the governmental body has reason to believe the donor has or is seeking to obtain contractual or other business or financial relationships with the governmental body.
B. Future Contracts with Donors
Prior to accepting a gift, care should be taken to determine whether acceptance of the gift will provide the donor, directly or indirectly, an undue competitive advantage in subsequent procurements.
C. Definition
For purposes of this Regulation 19-445.2165, the term “donor” means the business donating the gift and all divisions or other organizational elements of the business and any principals and affiliates of the business. For purposes of this Regulation, business concerns, organizations, or individuals are affiliates of each other if, directly or indirectly, either one controls or has the power to control the other, or a third party controls or has the power to control both. Indications of control include, but are not limited to, interlocking management or ownership, identity of interests among family members, shared facilities and equipment, common use of employees, or a business entity organized subsequent to the gift which has the same or similar management, ownership, or principal employees as the business that made the gift. For purposes of this section, the term ‘principals’ means officers, directors, owners, partners, and persons having primary management or supervisory responsibilities within a business entity including, but not limited to, a general manager, plant manager, head of a subsidiary, division, or business segment, and similar positions.
19-445.2180. Assignment, Novation, and Change of Name.
Text of regulation applicable to solicitations issued after the first Monday in September 2007
A. No Assignment.
No State contract is transferable, or otherwise assignable, without the written consent of the Chief Procurement Officer, the head of a purchasing agency, or the designee of either; provided, however, that a contractor may assign monies receivable under a contract after due notice from the contractor to the State.
B. Recognition of a Successor in Interest; Novation.
When in the best interest of the State, a successor in interest may be recognized in a novation agreement in which the transferor and the transferee shall agree that:
(1) the transferee assumes all of the transferor’s obligations;
(2) the transferor waives all rights under the contract as against the State; and
(3) unless the transferor guarantees performance of the contract by the transferee, the transferee shall, if required, furnish a satisfactory performance bond.
C. Change of Name.
When a contractor requests to change the name in which it holds a contract with the State, the procurement officer responsible for the contract may, upon receipt of a document indicating such change of name (for example, an amendment to the articles of incorporation of the corporation), enter into an agreement with the requesting contractor to effect such a change of name. The agreement changing the name shall specifically indicate that no other terms and conditions of the contract are thereby changed.
19-445.2200. Administrative Review Protective Orders.
A. At the request of any party or on its own initiative, the appropriate chief procurement officer or the Procurement Review Panel may issue a protective order controlling the treatment of protected information for purposes of a protest or other proceeding currently pending before it. Such information may include any information exempt from public disclosure by law, such as information exempt from disclosure under Sections 11-35-410 and 30-4-40. The protective order shall establish procedures for application for access to protected information and for identification and safeguarding of that information. Because a protective order serves to facilitate the pursuit of a protest or other administrative proceeding by a protester through counsel, it is the responsibility of protester’s counsel to request that a protective order be issued and to submit timely applications for admission under that order. Protected information received by a person pursuant to a protective order issued under this regulation shall be released only pursuant to and in compliance with the protective order.
B. A protective order may not prohibit a public body from releasing information which the public body must release under applicable law. A protective order may not require the release of any public record that a public body is prohibited from releasing by law. Issuance of a protective order does not preclude a party from asserting any legally cognizable privilege to withhold any document or information.
C. Before being permitted to view any protected information, counsel and any consultants retained by counsel who will review or utilize any protected information must file an application for access in accordance with the conditions of the protective order. To be entitled to access, an applicant must establish that the applicant is not involved in competitive decision-making for any firm that could gain a competitive advantage from access to the protected information and that there will be no significant risk of inadvertent disclosure of protected information. A consultant will not be permitted access to protected information if he or she is employed by a party to the action or is working under a contract to a party. Objections to granting an applicant access to protected information must be in writing and filed within two business days after the person receives a copy of the application for access.
D. Any violation of the terms of a protective order may result in the imposition of such sanctions as the CPO or Procurement Review Panel, as applicable, deems appropriate, including referral to appropriate bar associations or other disciplinary bodies and restricting the individual’s practice before the CPO or Panel. A business aggrieved by violation of a protective order may seek enforcement of such order in any available judicial or administrative forum.
19-445.3000. School District Procurement Codes; Model.
A. Application.
Under Section 11-35-70, a school district is exempt from the South Carolina Consolidated Procurement Code (except for a procurement audit) if the district has its own procurement code which is, in the written opinion of the Office of General Services of the State Budget and Control Board, substantially similar to the provisions of the Consolidated Procurement Code and regulations in effect at the time the opinion is issued.
B. Delegation.
The authority and responsibilities under Section 11-35-70 are hereby delegated to the Materials Management Officer.
C. Substantially Similar.
To qualify for approval, a district code should largely mirror, but need not be identical to, the Consolidated Procurement Code. Because a district code needs only to be substantially similar to the consolidated procurement code and regulations, a district code may accommodate the differing context of school districts (e.g., differences between state government and local school district operations, including size, purchasing staff resources, volume and type of procurements, and structure of its governing body and executive hierarchy) as long as it preserves the sound procurement policies and practices underlying the rules found in the consolidated procurement code and regulations.
D. Definitions.
Covered District means a school district subject to the requirements of Section 11-35-70. Model code means a model school district procurement code and any subsequent modifications to the model code, including instructions regarding how each district may customize the model code to an individual district’s organizational structure.
E. Guidelines; Model Code.
By requiring a written opinion, Section 11-35-70 provides for an exercise of judgment. The best interest of the state is served by exercising this judgment in a consistent manner. Accordingly, the Materials Management Office may publish guidance regarding its exercise of this judgment, including publication of a model code. In developing a model code, the Materials Management Officer should consult with all covered districts and the State Department of Education. Any model should be designed to serve and comply with the purposes and policies enumerated in Section 11-35-20 in the specific context of local school district operations, with due regard for minimizing administrative costs of compliance with the model code. Prior to publishing a model code, the Materials Management Officer must determine in writing that the model code is substantially similar to the provisions of the South Carolina Consolidated Procurement Code and these procurement regulations. Any school district may adopt the model code.
F. Duration of Written Opinion.
A written opinion issued pursuant to Section 11-35-70 remains valid for a covered district’s procurement code until the covered district seeks and receives a written opinion for modifications to its procurement code.
G. Effect of Adoption.
A procurement code adopted by a school district in accordance with all applicable law shall have the full force and effect of law.
19-446. Representation in Proceedings.
(Statutory Authority: 1976 Code Section 11-35-540)
Persons not licensed to practice law in South Carolina, including laypersons, Certified Public Accountants, attorneys licensed in other jurisdictions, persons possessing Limited Certificates of Admission, architects, and engineers, may appear and represent clients in protests, contract disputes and other proceedings before the Chief Procurement Officers.
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